*1 n
Edward Hein, Respondent, v. Terminal Railroad Association a Corporation, Appellant, No. 41351 224 W. (2d) Louis, St. 963. Two,
Division November Rehearing Motion for Overruled, to Transfer to Banc December Sheppard ap- Arnot L. William A. Thie and Fuller, Warner pellant. *3 respondent. Forrest Boeeker
Everett Hullverson and *4 BARRETT, Hein, C. Edward а truck driver for Luek ing Transfer Company, delivery had made Belt Cotton freight house tracks, the Terminal’s laid in Main or First Street, at a between O’Fallon and Dickson Streets when his truck by Chicago Railway struck and Eastern Illinois passenger Initially train. damages his action for rеsulting his injuries against Chicago both and Eastern Illinois *5 Upon Terminal. first jury the trial of his a cause found for him and against the Terminal but the Chicago exonerated and Eastern Illinois. He appeal did not from judgment in Chicago favor of the and Eastern upon Illinois and from appeal Terminal’s the $4,000.00 judgment against it the cause was reversed and remanded. Hein v. Chicago this Co., (Mo. App.) Upon & E. I. R. 209 S. W. $10,000.00 judgment trial of his cause he a second recovered against upon this' the Terminal. The Terminal’s first contention appeal unаppealed judgment is trial in that the of the court the first exonerating judgment Chicago trial and Eastern Illinois and reversing remanding judg- Appeals the St. and Louis Court against (res judicata) plaintiff’s right' ment it are conclusive of the to in recover this action. necеssary analyze point by point,
It is develop, not to and argument judgments Terminal’s detailed that the first n trial and appeal against recovery upon are trial. conclusive this sufficient, say It for purposes opinion, is of this to that the Termi seqks apply gеneral nal to judicata. this case the rules of res Restatement, Judgments, pp. may 157-160. Its contention be summar by excerpted quotation ized argument: “Judgment this from its on trial of & E. I., plaintiff- the first this case went for C. and for against appeal judgment. defendant. He did not from that His appeal judgment failure to left in favor of & E. final C. I. that any guilty was not negligence. actionable ipso This frees facto any legal defendant from responsibility plaintiff’s injuries. De fendant can not be legally failed to act. derivatively [*] * * Inasmuch as defendant’s liable for the acts of C. & alleged E. I. which liabil ity necessarily by plaintiff exclusively based upon postulate guilty that C. & E. negligence, I. was of actionable and inasmuch as finally it has been any determined that the & E. I. was not C. negligence, inescapable
actionable the conclusion is that no liabil ity upon can defendant, regardlеss any be cast lessor-lessee relation Any ship. liability upon derivative, defendant must because be by injured I., a a Regard C. & E. not Terminal train. relationship less of the liability between if defendants, the two one’s is primary and the other’s derivative, there can be no derivative liability primary liability.” in the absence of The answer to the Terminal’s contention In is twofold. the first
place liability its upon trial this was not derivative dependent upon or relationship Chicago its with the any and Eastern upon Illinois or negligent acts, conduct or breach of part Chicago Illinois, Eastern Ry. was the case in Brown v. Wabash (Mo. App.) 64; Portland Mining Gold Co. v. Stratton’s Independence, 158 Fed. Ry. Schneider, & C. C. I. Co. v. C. Ohio S. 17 N. E. by Chicago The hit
Eastern Chicago Illinois train and the Illinois, Eastern in the operation оf its train over tracks, may may the Terminal’s not negligent. have been But the predicated Terminal’s was not upon any negligence operation upon theory the train but crossing, owned and maintained the Terminal, was so peculiarly dangerous hazardоus and upon there was
952
warning for
of
safety
or means
provide
measure
Terminal to
some
or deriva
liability
dependent
not
using
crossing,
its
and that
those
L. R.
1273; 71
A. L. R.
A.
1096;
A.
R.
16
Annotations: 60
L.
tive.
Chicago
trial
the
S.,
760c, p.
In the first
1160;
J.
Sec.
50 C.
finding of
upon a
liability
hypothesized
Illinois’
was
and Eastеrn
Terminal’s
and the
doctrine
negligence
the humanitarian
under
’Fallon
flagman at
O
upon
its
was submitted
of
failure
he
as
approach of trains
crossing
plaintiff
to warn the
Street
Dickson
and
crossing between O’Fallon
crossing,
another
used
held
appеals
of
that trial the court
Upon
appeal
from
Streets.
Terminal,
against the
a
case
plaintiff did not make submissible
that the
flagman to warn
duty
’Fallon Street
upon
no
the O
because there was
‘‘ The
appeals
of
held:
plaintiff. Specificаlly the court
conclusion
theory
his
upon
plaintiff
not
to recover
inescapable that
was
entitled
’Fallon
duty
at O
case,
is,
of the watchman
that it was the
of
train,
watchman
of
and that the
approaching
warn him the
Street to
’’
-warning.
failing
given him such
guilty
negligence
to have
Nevertheless,
Co.,
(2),
209 W.
l.
Chicago
v.
& E. I. R.
c.
Hein
S.
has often done
appeals,
this court
place,
in the second
the court
as
633,
(Maxie
Co.,
R.
356
justice
Gulf,
v.
M. & O.
Mo.
in the interest of
reversing
(2) 904)
its
and instead of
202 S. W.
exercised
discretion
plaintiff
outright
cаuse “in order to afford
judgment
remanded the
advised,
petition and
opportunity,
if
be so
to amend his
he should
much
try
theory
crossing had been so
upon
private
his
case
continuously
by
charged the
general public as to have
and
used
safety
duty
looking
рersons going
Terminal with the
out
judgment of
upon'it.”
appeals,
this situation the
the court
In
Illinois,
though
Chicago
affect
and
was not
even
did not
Eastern
judicata
and
Terminal.
rel.
plaintiff
res
between the
State ex
as
355;
Buzard,
1162,
Mo.
Massman
Co. v.
Const.
346
625,
as if
S.,
p.
50 C. J.
Sec.
50. The situation was not
the court
appeals
judgment outright.
had
v.
reversed the
Ginnocchio
196; Berry Majestic
175 S. W.
v.
Illinois Cent. R.
Mo.
Milling Co.,
304 Mo.
The that the Terminal failed (a) a is no make submissible case because there evidence that Crossing was no extra-hazardous therefore there was warning a the defendant to furnish watchman or other device at the (b) crossing contributory negligence a argument as matter of law. In the Terminal’s concedes that effect crossing extraordinarily dangerous if there was evidencе that the warning. a that there was to furnish some means of The Termi tracks, tracks, nal’s three a main line track two switch are laid First or paving Main Street with on both sides of In the tracks. general intersecting the tracks run north and south O’Fallon and They area, Dickson in а commercial Streets. are surrounded crossing- storage The between freight houses, plants. warehouses and Dickson Streets was not O’Fallon such .0’Fallon say private or a public we need not it was Street was and whether main been constructed аnd crossing but it was a and had *7 Usually proceeded the Terminal since before 1919. trucks tained was Main 'Street to 0 ’Fallon to cross the tracks but when there down a freight “spotted” Egg Company, there was car at the Bowman as day crossing question. The usually, the usеd the in this trucks evidence is as detailed it could have been as to the number not using speed the is a main trains the tracks and their but one tracks of. says line track into the The Terminal that the Union Station. plaintiff’s crossing to i®ing-the evidence as. .the number of trucks is сontradictory speculative so that be it cannot considered-sub fifty day stantial. a His witnesses estimated that trucks used the crossing, average every that an ten- the five trucks minutes-used crossing during day day two the that or three hundred trucks a crossing. witnesses, including used the own But defendant’s watchman patrolman, O’Fallon Street and a from ten testified that twenty, twenty-five day to or crossing. trucks used the Cars ‘‘spotted” Egg Company the Bowman at obstructed the view the O’Fallon Considering physical tracks towards Street. surround ings, neighborhood, the nature of the the amount of travel over the crossing detailing and the obstructions to all view, the evidence without further, jury say, it was for the circumstances, to under all the crossing whether peculiarly dangerous was and whether the Termi -nal apprоpriate, degree had exercised the of care respect with to safety warning. or Homan v. Co., Missouri R. 61, Pac. 334 64 Mo. (2) 617; W. Chicago, Ry. S. Thomas v. Co., (Mo. App.) I. & P. R. W. 862; 271 S. R., annotations 60 A. L. l. c. 1106-1118; 16 A. R.L.
1273, 1277; 1160, 71 L. R. A. 1166. The recognized rule was first in Welsch v. Hannibal & Co., St. J. 72 R. Mo. 451 but it is an not essential part element or of the substantive rule plaintiff that in showing addition extraordinarily to that the peculiar ly “must show also hazardous that other railroads similar circum provided stances watchmen.” necessary again
It not to detail the circumstances 'under which attempted to use the demonstrate = he not contributory was negligence aas matter of law. The facts and -circumstances are opinion forth in set of the court of appeals (209 (2), 584) S. W. 1. c. and, as that court held, plain contributory tiffs negligence, сircumstances, under was for the jury. Wright Ry. Co., v. St: L. S. F. 557, 564, 327 Mo. 123, S. (2) 591; Rucker v. Alton R. 929, 343 Mo. W. (2) plaintiff stopped 'the before proceeded: he crossing, Here over the as far carefully and as could, looked as he and sounded his horn to attract the attention of flagman .the at O’Fallon Street before he
954 respect drove out his “spotted” from behind the boxcar and in this distinguishable case is from Lowden, Rischeck v. Mo. (2) S. W. 650 and Kurn, Scott v. 343 Mo. W. 126 S. necessity, case,
It in the circumstances of this theory of plaintiff’s croásing peculiarly action hazard ous and duty pro that therefore it was the Terminal to safety warning. vide some indi And, device or means of as we have cated, question jury had exer whether the Terminal required degree regard. cised the of care or breached in this its A. R., Nevertheless, Annotation 60 L. l. c. 1106. sub mitted the Terminal’s principal this manner: His instruc tion, one, began by “negligence.” said, separate in a It then Refining paragraph, “You are further instructed that it was the Louis, times, defendant Terminal all Railroad Association of St. at ordinаry give use warning along care to approach of trains its public crossings at all places tracks and at all other where street *8 members of public customarily crossed its tracks and where de fendant or, ordinary knew in the exercise of сould have known care, persons that customarily crossed the tracks.” The instruction then jury they told the that if found following facts to be true a verdict should be plaintiff, returned for the that the Terminal owned and tracks, maintained the crossing that had in been existеnce for many years large and general daily, that of public used it numbers that the Terminal knew of the use and knew or should have known plaintiff that using it, was approach train, unaware of the of a wholly “that defendant plaintiff failed to warn approаch of the said train provide any and to plaintiff means to warn of the train’s approach thereby and that the negligent” defendant was and that negligence such proximately plaintiff’s injuries. caused This was only instruction, except given on the damagеs, measure of behalf plaintiff. request At the gave the defendant the court this instruction: “You you are instructed that before can find that defendant Terminal negligence failing to station a watchman crossing at the involved, you here must believe from the greаter weight of the believable evidence that this awas much-traveled one particularly and was a dangerous one. Unless ’’ you your so-find verdict must be for defendant Terminal. may
It be that the instruction, particularly quoted paragraph, general abstractly correctly states the law and defines the duty. defendant’s apply theory But it does not to the upon which the plaintiff compelled rely to or to the precise, facts and circum- Generally, stances of this ease. in the statute, absencе of a railroad duty under provide no a watchman or warning crossing. other a at Ry. Co., Toeneboehn v. St. L.-S. F. 317 1096, 1110, Mo. 298 W. S. 795, 801; annotations 60 L. 1096; A. R. 16 A. L. R. 1273. This is say any particular not to words or formula must be used but the
955 liability, ease, plaintiff’s test the essence is that the peculiarly duty upоn hazardous and there was a therefore type safety Suggested proper' railroad to furnish some device. theory upon
instructions this found in Homan Missouri are to be v. R. Co., 61, 74, (2) 617, Pac. 622 Mo. S. W. and Benton v. Thompson, App. 1000, (2) plaintiff 236 Mo. 156 W. 739. S. The says that the defendant’s instruсtion is incorrect therefore may they plaintiff’s not be said so conflict. But even instruc correctly hypothesize tion does not circum the defendant’s in the stances of jury upon this case. The undertook to instruct the doing the whole ease and in so instruct improperly omitted to in upon an Thompson, structed essential of his case. McGrew element v. 856, 184 (2) 994,
353 Mo. 998; S. W. Blackwell v. Union Pacific R. (2) quoted 331 Mo. 52 W. 814. If S. the defendant’s instruction was given properly conflict, the instructions and without it the instructions improperly hypothеsize defendant’s under the theory upon necessity rely. which Wright must of v. Ry. Co., F.
St. L.-S. 327 Mo. S. give It was error to instruction accordingly judgment one and is reversed and the cause remanded. Bohling, CG., WestKues and concur.
PER foregoing opinion CURIAM: The C., adopted Barrett, opinion judges court. All concur. Schneider, Appellant, v. Israel Respondent, D. No. Newmark, Sam (2d)
41054 224 W. *9 One,
Division November Rehearing Overruled, Motion for or to Transfer to Banc December